Without widespread alarm, the
Background
In
The Ruling
Judge
The court held that the Department did not meet its burden "in showing that the entirety of the 1.7-mile radius could have been contaminated, and certainly not in amounts that would have caused [the Department] to incur response costs in the Residential Areas" or "in showing that discrete portions of the Residential Areas were contaminated." The court rejected the Department's claim that the plant's operators were liable for response costs stemming from the facility's releases.
The court's reasoning centered on rejecting speculative evidence in favor of establishing "plausibility" that contamination in particular places was caused by releases from the plant: "[the Department's] largely speculative evidence establishes, at most, that an undetectable amount of lead landed in some undefined parts of [the 1.7-mile radius] . . . . This speculation is insufficient to establish the required nexus between the [Exide] Plant's releases and the cleanup costs [the Department] incurred throughout the Residential Areas."
Implications for Future Cases
The court's opinion extensively discusses CERCLA causation case law, finding that courts have struggled to articulate a clear causation standard for CERCLA's requirement that there be a nexus between a hazardous substance release and the response costs incurred. Yet despite CERCLA's liberal construction and
Plaintiffs in CERCLA cost-recovery actions will need to be more vigilant about establishing causation. Since they may now need to prove that certain releases "plausibly" caused contamination in specific areas, future litigation will feature a greater emphasis on site testing and analysis of site characteristics, such as site geology. Indeed, such a heightened analysis played a role in
Future cases will especially require heightened analysis for proving causation when it comes to hazardous substances that occur naturally in the environment, such as the metals lead, barium, and arsenic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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